Judicial review: an overview David A Scoffield BL Law Society House 10 May 2011

1. Judicial review: an overview David A Scoffield BL Law Society House 10 May 2011

2. Who is this talk aimed at? Lawyers ‘Normal people’ (non-lawyers) Those who know a little about judicial review Those who know virtually nothing about judicial review

3. Why should you be interested? The practice of judicial review spans many areas of law: Criminal procedure Prison law Planning Licensing Education Social security benefits Criminal injuries compensation Human Rights Political / constitutional issues

4. Why should you be interested? Judicial review: Is a growth area Often makes new law Remains an area in which legal aid is often available Can make a real difference to lives Is interesting (?)

5. What is judicial review? Judicial review is the exercise of the High Court’s supervisory jurisdiction over public law decisions and actions ‘Judicial review is the appropriate remedy where a person seeks to establish that the decision of a person or authority infringes rights protected by public law’: per Hutton LCJ in R v Chief Constable, ex p McKenna [1992] NI 116 at 123a ‘... the principal legal procedure by which public power is defined, invoked or restrained’ (Larkin and Scoffield, Ch 1)

6. The basis for judicial review Two broad views: (i) Legislative intent: ‘the ultra vires principle’ (ii) Common law: constitutional principles of judicial control of public power

7. What is judicial review? The jurisdiction is one which is exercised by the High Court alone The jurisdiction is supervisory and is neither an appeal nor (generally) addressed to the merits of the decision The jurisdiction is only available in respect of public law issues The jurisdiction is generally a remedy of last resort (unavailable where there is a suitable alternative remedy)

8. Review: not appeal “In judicial review, the High Court is not a court of appeal.  It does not hear and determine appeals on the merits against decisions of public authorities.  Rather, the High Court exercises a supervisory jurisdiction.  Stated succinctly, the function of the High Court is to ensure that public authorities observe all relevant legal rules, standards and requirements and act within the limits of their powers. In essence, the High Court conducts an audit of legality.” per McCloskey J in Re Board of Governors of Loreto Grammar School’s Application [2011] NIQB 36

9. Public law issues Judicial review is a public law procedure designed to supervise the public administration and check the excesses of public power See Re McBride’s Application [1999] NI 299 (QBD); and No 2 [2003] NI 319 (CA): “It appears to me that an issue is one of public law where it involves a matter of public interest in the sense that it has an impact on the public generally and not merely on an individual or group. That is not to say that an issue becomes one of public law simply because it generates interest or concern in the minds of the public. It must affect the public rather than merely engage its interest to qualify as a public law issue. It seems to me to be equally clear that a matter may be one of public law while having a specific impact on an individual in his personal capacity.” [per Kerr J]

10. Public law issues Classically, judicial review will be against a public body. However… A private body may be exercising public law functions: see R v Panel on Takeovers and Mergers, ex parte Datafin [1987] QB 815; Re Wylie’s Application [2005] NI 359 A public body may be exercising private law functions It is the nature of the power/function which is relevant and not its source: see the GCHQ case (Civil Service Unions v Minister for the Civil Service [1985] AC 374)

11. The grounds of judicial review JR is a review rather than an appeal The traditional groups of judicial review grounds are (i) illegality; (ii) procedural impropriety and (iii) irrationality (per Lord Diplock in the GCHQ case) More recently developed grounds are now (iv) breach of legitimate expectation; (v) mistake of fact; (vi) human rights grounds Often, grounds will overlap

12. Illegality (ultra vires) acting contrary to statutory provisions erring in law and/or misdirecting yourself in law exceeding statutory powers acting without jurisdiction acting for an improper purpose improperly fettering a discretion unlawfully delegating a function

13. Procedural impropriety Failing to adhere to established procedures (a species of legitimate expectation) Failing to adhere to the principles of natural justice: (i) audi alteram partem (the right to know what is alleged against you and present your version) and (ii) nemo judex in causa sua (the rule against bias) Failing to comply with the duty to act in a procedurally fair manner - procedural safeguards which will differ from case to case: see ex parte Doody [1994] 1 AC 531

14. Irrationality Procedural irrationality: taking irrelevant considerations into account or failing to take relevant considerations into account Substantive irrationality: Also known as Wednesbury unreasonableness – see Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 Made out where no reasonable decision-maker could have come to that decision A very high threshold

15. Legitimate expectation Established by representation by the public body or, more difficultly, from past or established practice or the circumstances of the case Legitimate expectation may give rise to entitlement to (i) procedural protection before the expected benefit is denied; or (ii) the substance of the expected benefit See Re Board of Governors of Loreto Grammar School’s Application [2011] NIQB 30

16. Mistake of fact Previously limited review in relation to fact-finding: only where no factual basis on which decision could be reached May now review where mistake as to established and relevant fact See Re Treacy and MacDonald’s application [2000] NI 330

17. Human Rights Section 6 of the Human Rights Act 1998: obligation on public authorities not to act incompatibly with Convention rights Note the ‘victim’ requirement in section 7 of the HRA Where you are challenging primary legislation the best you can achieve is a declaration of incompatibility

18. Proportionality Part of EU and human rights law Continuing controversy over whether it is now (or ought to be) established in domestic public law – see ex parte Daly [2001] 2 AC 532 and R (ABCIFER) v Sec of State for Defence [2003] 3 WLR 80

19. Procedure for Judicial Review Governed by: Order 53 of the Rules of the Court of Judicature (Northern Ireland) 1980 Section 18 of the Judicature (Northern Ireland) Act 1978 Judicial Review Practice Note and Pre-Action Protocol Two stage procedure: leave and substantive hearing

20. Time limits Governed by Order 53, Rule 4 – application must be brought ‘promptly’ which varies with the circumstances ‘and in any event within three months’ Need to explain delay in grounding affidavit

21. Locus Standi Governed by Order 53, Rule 3(5) – applicant requires ‘sufficient interest’ in the matter to which the application relates See R v Inland Revenue Commissioners, ex p NFSSB [1982] AC 617; and, in NI, Family Planning Association v Minister for Health [2005] NI 188 per Nicholson LJ at para [45] Note difference from victim requirement under HRA

22. Relief in Order 53 proceedings Certiorari – quashes a decision or action Mandamus – enforces the performance of a public law duty Prohibition – restrains a Respondent from acting unlawfully Declaration – sets out the rights of the parties Injunction – compels or restrains certain actions

23. JR Checklist (1) Is it a public law matter susceptible to judicial review challenge? (2) Is there an alternative remedy which must be pursued? (3) Is there a JR ground of review which can arguably be made out?

24. JR Checklist (4) Does the applicant have sufficient interest to have standing? (5) Can the application be made promptly or at least within three months of the decision?

25. Initial steps Engage in pre-proceedings correspondence: see Re Cunningham’s Application [2005] NIJB 224 NOTE also the need for compliance with the JR Pre-Action Protocol (September 2008): “Scrupulous compliance with the Judicial Review Pre-Application Protocol is indispensable in every case, subject to the very narrow exceptions recognised in the text” [per McCloskey J in Re McDonagh’s Application [2010] NIQB 139 at para 17]. Apply for Legal Aid (if appropriate), often with need for counsel’s opinion

26. Lodging proceedings Have drafted: (i) Order 53 Statement; (ii) supporting affidavit Lodge above with ex parte docket Dealt with in the Judicial Review Office

27. Drafting essentials Order 53 Statement is a formalised document which must contain: (i) a statement of who the Applicant is (ii) a statement of the relief sought (iii) a statement of the grounds on which relief is sought

28. Progress of the case Leave may be granted on the papers or at a hearing Hearing will be required in an unclear case or where interim relief has been claimed Test for leave is whether there is (i) an arguable case; or (ii) a case worthy of further investigation

29. Progress of the case After leave: (i) lodge Notice of Motion within 14 days (or leave will lapse); and (ii) apply for extension of Legal Aid authority if necessary The case is managed by the Judge through mention hearings until ready for hearing

30. Evidence in JR Limited discovery – but see now Tweed v Parades Commission [2007] 2 All ER 273 (HL) Evidence by affidavit (see RSC Order 41) Can apply for attendance of witnesses and leave to cross-examine but this happens rarely

31. ‘Settling’ a JR Resolutions may be reached between the parties If the Judge is satisfied that the public authority acted unlawfully he may grant relief by consent but will not do so unless he is so satisfied Alternatively, the application may be dismissed by consent If costs are not conceded by the respondent, they will only be awarded if the applicant can show he was virtually certain to succeed – this happens rarely

32. Hearing Skeleton arguments should be lodged in every judicial review unless dispensed with by the Judge: see the relevant Practice Direction Applicant makes submissions; the respondent replies; and the applicant has a right to reply Usually heard by Mr Justice Treacy or Mr Justice McCloskey

33. Costs in JR Normal costs rules apply However, where the litigation is in the public interest, normal practice made be departed from (eg. protective costs orders)

34. Useful texts Larkin & Scoffield, Judicial Review in Northern Ireland: A Practitioner’s Guide (2007, SLS Legal Publications (NI)) Anthony, Judicial Review in Northern Ireland (2008, Hart Publishing)